tv [untitled] March 9, 2011 7:00pm-7:30pm PST
one would review it. >> they are wrote checked by the planning department. -- they are checked by the planning department. there is if you came through and -- if we were granted say eight parking spaces and we filed a buildling permit for 12, the planning department would not sign off on that permit. we would never get to this point. >> i think the point is whoever used the planning department. there's no further level of review. i mean, that's what we typically do. >> respectly, then the charter provision must mean something. commissioner peterson: as i read it it says permits pure
sunt to a considerable -- per sunt to a conditional use. let me find it here. a building or demolition permit for a project that has received a permit or lines per sunt to a conditional authorization. i'm wondering what the world pursuant means here. and then i guess my concern is where is the next level of review. and if this type of permit is on a subject or a building that was outside of the scope of what was part of the conditional use authorization, then would we then get to review that? would that be your position? >> it carefully checks and
verifies that the building permit has been issued consistent with and pursuant to the c.u. that's the check. if there's evidence that there's been a grows change in the project, i suppose there could be an issue. but there's been no -- for example, the issue about the retaining wall and geotechnical issue, that's been a part of this project from day one. so projects issued pursuant to the c.u. that had a retaining wall in it from day one i believe are covered by 4.106. >> right, but your opposition says it's unrelated. each side has its own argument. i'm done with you. >> thank you. president goh: mr. san zphezz >> good evening, scots -- scott
sanchez, planning department. this certainly is a good legal issue and discussion. there is a use authorization that does authorization the -- authorize the projects, the renovation of the unit, the parking. the planning commission considers the entire project. the first permit, the 2008 permit, which i believe deals with the parking. the two subsequent permits submitted after the conditional use hearing which deal with the cottage units. you can submit the building permit application after the hearing so. if you don't prevail at the planning commission you haven't spent money on the application. you typically have up to three years to get a building permit application and the board does
review those. any did he have vacations we review and we view them to be major deviations, we take it back. in regards to other appeal venues. there was variance for this which was not appealed to this board. variances, even though they're associated with e.u., -- e.u.'s can still be taken to the board of appeals. the environmental review and conditional use, those were not appealed in a timely fashion either. there are several appeal mechanicisms that are available and the appellant did not go to any of these. i think the president was referring to the potential for
some trickery here. i honestly would doubt that. i mean this in a nice way -- people want to avoid going to the planning commission. in order for someone to go to the planning commission and try to get some entitlement that day then later try and manipulate and pull something over the neighbors, i have not seen that happen, honestly. i don't know that that's something people would try to use as a mechanism. those are my comments on this and i would be available for any questions. >> you mentioned four times of appeal processes the requester or appealer could seek out but you didn't address the question that i and i think president goh is concerned with. is there no further review after the planning department or the planning commission determines that a project or a building has been done -- built
in compliance with the c.u. is there no further level? >> we have the conditional use authorization, which can be appealed within 30 days. after that the building application comes to the planning department and it is reviewed by all the appropriate agencies. it's not as if the planning department is -- it goes as a normal building permit would. that charter says that permit cannot be appealed to this board. >> but can it be appealed to the board of supervisors? >> not under that mechanicism. and that's the chaferter. >> i think i heard you say -- >> the standard condition of approval is that they have three years to generally receive the building permit application.
some people will submit it immediately after they get their authorization. some people, months or years after. >> that's the hard thing for me to understand, is if they go three years out and it's not exactly the work that was part of the project that the planning commission approved. you know, fit seems peripheral or different. >> if there are changes then we will review that and if we make the determination that they were significant changes then we will have them go back to the planning commission. >> but i guess in other situations the planning departments and the building and d.v.i.'s aren't the end to have story and if somebody disagrees then they have a right to appeal. in this situation it sounds like what you're saying is it just doesn't exist. >> i don't think i'm saying it. the charter is saying it. it's what we have to work with.
>> ok thank you. >> thank you. commissioner fung: mrs. sanchez, are you familiar with the scope of work envisioned in these three -- mr. sanchez, are you familiar with the scope of work envisioned in these three projects? >> i have a general understanding -- commissioner fung: can you summarize what is involved within each of them? >> it's my understanding the first permit, the 2008 permit, and perhaps the permit holder's representative can give a more thorough analysis. it's my understanding the first one deals with parking only. then there are two other -- commissioner fung: before you leave that. and where is the parking being provided? underground? >> yes, i believe so. commissioner fung: beneath the cot ages? >> that's my understanding, yes. commissioner fung: and how
about the other two? >> the other two are dealing with the cot ageses themselves and those renovations which address the dwelling units, which are also address in the conditional authorization. they merged 10 dwelling units to four dwelling units. commissioner fung: those remaining two permits dealt with either the removal walls or things to allow larger units? >> that's my understanding. so each of the three permits deals specifically with an element of the conditional use. that's my understanding of the scope of the permits. commissioner fung: do you know why the retaining wall is required? see, we have no graphics in this package. >> i would defer to the project counsel's sponsor for more details on that. >> any further comment on that question? commissioner fung: i can wait.
>> there is no rebuttal. if you'd like us to move into public comment we can do that. >> i would actually like to hear from mr. junius, the questions asked by commissioner fung regarding the scope. >> i'm sorry, the last question i missed. the project has three major components. the first is the garage. a major excavation lifting the cottages up. and the other two permits relate to above grade changes, which are significant interior changes to the cottages, maintaining them to the historic preservation's determination and finally, building an addition in the rear that's part of the retaining wall that's always been part of this project, between the back of the cottages and the rear property line. the new addition to all cottages represents a building in the back and putting parking
in. that's what the c.u. was granted for. commissioner fung: is retaining wall is under which permit? >> i believe the last one. the second one, sorry. commissioner fung: has the -- are these cottages on independent lots or on a common lot? >> there was some confusion there. before my client purchased the actual property i believe they were con doed. we're proceeding to recondo them again. they are on one single lot, i believe. >> seems to be a lack of clarity, at least on my part. you obviously know the project very well but we don't have any graphics and we're taking your word for your position that the retaining wall is -- has always been part of the c.u. authorization, part of the scope of the project, but we're
hearing from the requester that it is completely unrelated. that's two opposite arguments, so we -- i feel a little -- i feel the need for more information and i don't know if, you know, i know a continuance is requested but that would not be usual for me. >> if i may, i'm not sure the requester here is saying that there was no retaining wall. i think she might be saying that the retaining wall has changed. i think that was her exact terminology. it probably has changed. technical drawings -- projects have all, once they do -- go through a c.u. process to a technical design required, to -- so there's no question that we changed the retaining wall. we didn't need that detail. part of the c.u. was we were
going to have a retaining wall. we don't need to know a lot of the technical detail until we know we have a project and that's when the details get fleshed out and refined. i think that's what she's referring to. certainly there's been a refinement of the design. that always happens. >> i would actually like to hear from the requester as respected by your opponent. >> thank you. as i understand it, and i haven't been involved as long as the others have been, that there was always a retaining wall, that's true, but it significantly changed in terms of all of its basic components. and why we're saying it's not part of the c.u. is the c.u. was for just the merger and the increased parking spaces and the retaining wall is unrelated to the need for the c.u. you could have had a project without a c.u. that had this retaining wall and these
properties. the problem with the retaining wall is the plans for it and the way it's designed, which now calls for a design that will create a dewatering and an instability of the prorlts on larkin street. that's what dr. harp says. we've had no forum to analyze that problem. yes, there was a retaining sketch, i suppose and the designs and plans for that have changed in a significant way that now threatens properties on larkin street from our point of view. they filed revised plans in june of 2010 then we got our extra report and then they applied for the new permits. that's why it's had no oversight and we argue is it was certainly not addressed by the planning commission and at that time there was not the dewatering problem and the lack of tie-in with neighboring properties and so there was no reason for people to be concerned about it.
when they came back with revised plans in june that's when the problems started to become apparent and we kept trying to find a forum and we've been waiting for this board to deal with this. >> thank you. >> any members of the public who would like to speak on public comment on this item? if so please raise your hand. it seems there is no public comment. then, commissioners, the matter is yours. president goh: commissioners. commissioner fung: i have some random thoughts at this point. on a less serious note, when the permit holders represented indicated that it was a long, long time ago that this board did not here conditional uses, i was on this board when we used to hear conditional
uses and we heard environmental review appea that makes me feel really old. i am really old. thank you. this issue has come up and -- and based upon my interpretation of the charter, and i know that perhaps the city attorney's office may disagree with me on that -- i don't think it's so clear cut that a conditional use eliminates all aspects of the permits from review by this particular body. but at the same time, the appellant also had other options. there were other options for review. highly technical ones for the
building commission. the gio technical aspects of it are appealable to the building commission, who does not have some of the same, i believe, perhaps apply to this body, who was targeted in some of the charter revisions. the -- and i can think of instances where a certain type of conditional use, perhaps, has zero correlation or nexus to a particular permit. i'm not sure what that nexus may be in this particular mansion? . we have no idea of the full range of language that was used in the reviews. we have the planning
department's determination on the c.u. we have no idea what the permits do other than the general descriptions of them and i can see where one could make an argument, as an example, that if one was merging multiple units into one that, no doubt, is part of the conditional use application. however, i'm not sure that all elements of the permit are so clear cut as being related to the c.u. >> i would agree -- go ahead, please. >> i just wanted to say that's what i'm struggling with. irked put on the record, too, that i'm familiar with miss grant holley and then i consulted with her eight, nine years ago on a pro bono basis for a neighborhood issue and that will in no way affect my
decision making today. but that -- vice president garcia:, if you don't mind, since i'm talking, i'll just continue talking. that and what commissioner fung said are my concerns. it's overbroad to say that if a c.u. is issued on a property, then any permit pulled on that property is not reviewed by us or by anyone. i guess i would be somewhat happy to hear that it could be reviewed by the building inspection commission. but i do have a problem with that and i think that in the briefing we saw that this appellant thought that they were just going to file an appeal and it was really our staff who said oh, no, it pertains to a c.u. so we can't. so that's why we're hearing this jurisdiction request position and, having said all that, i'm inclined to grant
jurisdiction. i just would like to see more. i would like to see the project and be able to make the judgment about whether or not it is or was part of the c.u. you know, maybe not, so -- >> i just would echo the comments of president goh and i said it earlier. i feel like there's some information that's missing here to understand the arguments that are being made on both sides. was it a part of the project, sit within the scope? and that it is critical to the question of whether or not these permits were issued pursuant to the conditional use authorization and that's what we need to determine here. so those facts go into our legal question. so for that reason, i would move to continue in order to --
vice president garcia: if you don't mind, i have a comment. >> i'm sorry. i'm finished. vice president garcia: it's an unfortunate situation that there could be elements of a permit but regardless of whether it comes under the c.u. or not that don't have the normal levels of review. i feel rather strongly that is what is consistent with the charter. that it's been identified before this body, issues like that. i would think mr. junius would be concerned with that because we works both sides of the beat. he's been here representing an lantz and he's here representing permit holders. i think what attorney for requester is saying is not that this doesn't come under the permit for the c.u. but that it's not totally related to what the c.u. was required. what was required in order to get a c. u.?
a c.u. was needed because a dwelling unit merger was taking place that needs a c.u. but my interpretation of the charter, which is -- i feel very uncomfortable even saying that, much less interpreting the charter. is that anything that springs from that comes under c.u. and what is unreasonable about that -- and i totally agree it's unreasonable -- is the fact that after the period has expired in which someone could appeal the c.u. to the board of supervisors, an issue can be raised having to do with the project that is no longer reviewable. except by the planning department itself, who has discretion as to whether or not to bring it before their commission. i think that the reason this board exists is to limit discretion of other departments.
and i think it's reasonable. i am surprised, too, to hear that it can still at this time be appealed to d.b.i. i did not know that. i hope that's true. i'm getting a nod from mr. -- a shake. a negative nod from mr. duffy that it probably can't be. it disturbs me that there is no other review to be had of this. all we can do, at least all i feel that we could do is ask that d.b.i. give this extremely close scrutiny and make sure that all things are as they should be and that no damage is done to requester's property. but given some of the things that happened here earlier, i don't know that i want to start friday willing our rules. at any rate, that's how i feel. president
floor? president goh: i can move to continue this in order for the parties to provide additional information regarding the scope of the project. we have a -- >> i just want to say that -- the building inspection commission. they'll probably hear and it they could ask the d.b.i. to investigate that the permit was appropriately approved and reviewed for the structure of that and the retaining wall. it seems to be a geotechnical and structural matters that are being brought up by this lady, the appellant. so is that what ump asking me? commissioner garcia? commissioner fung: i believe -- not quite, yes. there are components of a permit that are appealable, i
believe, to the building inspection commission. >> i've just never seen the commission revoke a permit or something like that so maybe the city attorney could share that up. >> i don't have the provision in front of me but i believe it's chapter 77 of the cold. and generally it says that permits that are not appealable to the board of appeals may be heard by the building inspection commission -- building permits. of course, there are very few permits that are not appealable to the board of appeals and there is a 15-day appeal period. they also have a late jurisdiction for the request process at the building planning commission. >> i think it's rare but it's probably allowed. the only other thing i would say on this as well is just looking at the review of the permits, i'm not so sure it got a full structural review from
d.b.i. for the retaining wall. i don't see that permit signed off by an engineer at d.b.i. so i'm not sure if there's [unintelligible] maybe mr. junius can comment on that. without seeing the drawings, i can't comment on that. >> thank you. president goh: mr. junius has his hand raised and i think he would like to respond to what mr. duffy just said. >> thank you so much, president goh. to be very clear, the structural addenda that mr. duffy referred to is actually in check right now. the permits before you are depfeiferments. very different things. the technical major structural
documents are still being reviewed. they're complicated technical documents that are in the middle of the process, thank you. president goh: ms. holley, would you like to respond? >> not on that point particularly but if i can if -- have my few seconds to say that the key here i think remains that the -- as vice president garcia was saying, the fact that there may not be a place to come. in my mind that means the charter needs to be interpreted in a way that allows appropriate oversight and the reasonable way to interpret the charter on this point is that permits granted pursuant to the conditional use issues, which here are the merging and parking spaces and have nothing to do with the issues we want to bring before this board. let us come before you and
explore the problems. thank you. president goh: that was not in regard to the comments of mr. duffy, but it was 30 seconds so -- commissioner? >> there's a motion on the floor to continue. i think the you could -- if you could be as specific as possible as to what additional information you'd like brought. >> i'm looking for -- i'd like to see information that would help us better understand whether or not the permits that are being -- permits at issue >> in fact, pursuant to the conditional use authorization. so whatever the parties believe will support either position, that's what i'd like to see. including sight plans. whatever plans. graphics would be useful.
do you want to set a page accomplishment? president goh: commissioner fung, do you have comment? commissioner fung: do you want to see the geotechnical report? >> yes. >> three pages of briefing with unlimited exhibits and do you want them to be filed at the same time or do you want the permit holder to have an opportunity -- president goh: simultaneous filings of three pages and are we looking at march 23 again? >> i don't know if that's sufficient time. president goh: commissioner wong? >> i defer to our director on scheduling. >> i don't know if that's sufficient time for both parties. president goh: well, then we could go to the next april 13.